Clarence Thomas on Abortion

Supreme Court Justice (nominated by Pres. Bush Sr. 1991)

1991: Never thought about Roe v. Wade while in law school

Senator Patrick Leahy peppered Thomas with questions about whether he had ever discussed or debated Roe v. Wade when he was at Yale Law School, the judge denied it. He cast himself as a sort of social recluse and a grind who had little time beyond
studying and working to engage in such musings: "My schedule was that I went to classes and generally went to work and went home." Leahy registered incredulity: "I'm sure you are not suggesting that there wasn't any discussion at any time of
Roe v. Wade?" Thomas replied, "Senator, I cannot remember personally engaging in those discussions." Leahy: "Well, was it properly decided or not?" Thomas: "I have not made a decision one way or the other with respect to that important decision.
Much later, Leahy said Thomas's responses that he had never even thought about Roe v. Wade as a law student were so preposterous that they cost him the senator's vote."

1991: There us a right to privacy in the 14th Amendment

When Thomas said he believed "there is a right to privacy in the Fourteenth Amendment," Biden seized the opportunity. "Well, Judge," he asked, "does that right to privacy in the Liberty Clause of the Fourteenth Amendment protect the right of a
woman to decide for herself in certain instances whether or not to terminate a pregnancy?" Thomas artfully dodged. "Senator, I think that the
Supreme Court has made clear that the issue of marital privacy is protected, that the state cannot infringe on that without a compelling interest, and the Supreme Court, of course, in the case of Roe v. Wade has found as a fundamental interest
a woman's right to terminate a pregnancy." And he added: "I do not think that at this time I could maintain my impartiality as a member of the judiciary and comment on that specific case."

Parental notification is lower priority than maternal health

In Ayotte v. Planned Parenthood of Northern New England, a challenge to a New Hampshire law that prohibits doctors from performing an abortion on a minor until 48 hours after a parent has been notified is heard. The Supreme Court rules that the
government cannot restrict abortions when one is required during a medical emergency.

OnTheIssues explanation: The court did not rule against "parental notification" in general; in other words, states can decide if and when a minor girl's
parents must be notified. But the court imposed restrictions: if the minor girl's life is in danger, her right to an abortion overrules the state's requirement for parental notification. Justices in the majority agree that the right to an abortion for
maternal health is the higher priority (a pro-choice stance); justices in the minority say that parental notification has the higher priority (a pro-life stance).

Opinions: O`Connor wrote majority opinion; all 8 other justices concurred.

Defining abortion position would prejudge abortion cases

SENATOR METZENBAUM: I will repeat the question. Do you believe that the Constitution protects a woman’s right to choose to terminate her pregnancy.

JUDGE THOMAS: I have no reason or agenda to prejudge the issue or to predispose to rule one way or the other on the issue of abortion, which is a difficult issue.

METZENBAUM: I am not asking you to prejudge it. You certainly can express an opinion as to whether or not you believe that a woman has a right to choose to terminate her pregnancy without indicating how you expect to vote in any particular case.
And I am asking you to do that.

THOMAS: Senator, I think to do that would seriously compromise my ability to sit on a case of that importance and involving that important issue.

Personally views back-alley illegal abortions as torture

SENATOR METZENBAUM: Prior to the Roe decision, only wealthy women could be sure of having access to safe abortions. Poor, middle-class women were forced to unsafe back alleys, if they needed an abortion,
where coat-hangers are substitutes for surgical instruments.

JUDGE THOMAS: As a kid we heard the hushed whispers about illegal abortions and individuals performing them in less than safe environments.
If a woman is subjected to the agony of an environment like that, on a personal level, certainly, I am very, very pained by that. I think any of us would be. I would not want to see people subjected to torture of that nature.
On the question that you asked me, as difficult as it is for me to anticipate or to want to see that kind of illegal activity, I think it would undermine my ability to sit in an impartial way on an important case like that.

Never discussed Roe v. Wade in law school nor since

SENATOR LEAHY: You were in law school at the time Roe v. Wade was decided. Was it discussed while you were there?

THOMAS: The case that I remember being discussed most during law school was Griswold. But I did not spend a lot of time debating all the
current cases.

LEAHY: I am sure you are not suggesting that there wasn’t any discussion at any time of Roe v. Wade?

THOMAS: Senator, I cannot remember personally engaging in those discussions.

LEAHY: Have you ever had discussion of Roe v. Wade in
the 17 years it has been there?

THOMAS: Only in the most general sense that other individuals express concerns, and you listen and you try to be thoughtful. If you are asking me whether or not I have ever debated the contents of it, that answer to that
is no, Senator.

LEAHY: Have you ever stated whether you felt that it was properly decided or not?

THOMAS: I don’t recollect commenting one way or the other. There were, again, debates about it in various places, but I generally did not participate.

Privacy is protected; no comment on application to abortion

SENATOR BIDEN: Does the Fourteenth Amendment protect the right of women to decide for themselves in certain instances whether or not to terminate pregnancy?

JUDGE THOMAS: My view is that there is a right to privacy in the Fourteenth Amendment.

BIDEN: Well, does that right to privacy protect the right of a woman to decide for herself in certain instances whether or not to terminate a pregnancy?

THOMAS: The Supreme Court has made clear that the issue of marital privacy is protected, and in
the case of Roe v. Wade has found an interest in the woman’s right to terminate a pregnancy. I do not think that at this time that I could maintain my impartiality as a member of the judiciary and comment on that specific case.

BIDEN: [What about
your] natural law philosophy [expressed during your tenure in the Reagan Administration]?

THOMAS: What I was looking for were unifying themes in a political standpoint, not a constitutional adjudication standpoint.

Overruling previous cases is a very serious matter

SENATOR THURMOND: Would you please briefly state your general view of stare decisis [upholding a previous court’s ruling based on precedent] and under what circumstances you would consider it appropriate to overrule a prior procedure?

JUDGE THOMAS: I think overruling a case or reconsidering a case is a very serious matter. Certainly, you would have to be of the view that a case is incorrectly decided, but I think even that is not adequate. There are some cases that you may not agree
with that should not be overruled. Stare decisis provides continuity to our system, it provides predictability, and in our process of case-by-case decision-making, I think it is a very important and critical concept. A judge that wants to reconsider a
case and certainly one who wants to overrule a case has the burden of demonstrating that not only is the case indirect, but that it would be appropriate, in view of stare decisis, to make that additional step of overruling that case.

Held:

(Written by O’Connor, Kennedy, and Souter; joined in part by Stevens and Blackmun)Liberty finds no refuge in a jurisprudence of doubt. Yet, 19 years after our holding that the Constitution protects a woman’s right to terminate her pregnancy in its early stages, Roe v. Wade (1973), that definition of liberty is still questioned. We are led to conclude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed, in three parts:

The right of the woman to choose to have an abortion before viability.

The State may restrict abortions after fetal viability if the law contains exceptions for pregnancies which endanger the woman’s health.

The State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.

Dissent:

(Rehnquist, joined in part by White, Scalia, and Thomas)The joint opinion, following its newly minted variation on stare decisis, retains the outer shell of Roe v. Wade, but beats a wholesale retreat from the substance of that case. We believe that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases. We would adopt the approach of the plurality in Webster v. Reproductive Health Services (1989), and uphold the challenged provisions of the Pennsylvania statute in their entirety.